Lights! Action! Justice!

BY Saurav Datta| IN Law and Policy | 01/11/2014
On matters of great public interest, the Supreme Court's proceedings should be televised. Cameras in court will allow the public to see justice being done,
says SAURAV DATTA with reference to the Thanthi case (PIX: Fali Nariman).
In November 2010, the US Supreme Court led by Chief Justice Rhenquist turned down all pleas to telecast the hearing of Bush v. Gore. The court, brushing aside overwhelming public interest, decided to shroud itself in secrecy, reinforcing the public's suspicion that it "helped” George W. Bush steal the election. Although the transcripts of the oral arguments were released later, the doubts over the initial zeal for secrecy lingered. 
Perhaps India’s Supreme Court might do well to remember this in the hearing over the demand of the All India Bar Association to impose suo motu  criminal contempt charges against Thanthi, a Tamil news channel. 
True, the channel resorted to subterfuge to record and broadcast Fali Nariman's arguments in the bail hearing of former Tamil Nadu chief Minister Jayalalithaa. In its defence, as reported, the channel said its actions were in good faith and the public had a right to know how the law was dealing with such an important incident.  
Thanthi's actions were illegal because the law, as it stands today, does not permit broadcasting of court proceedings. Civil contempt might be applicable, for there was wilful defiance of the court's prohibition on recording and telecasting of proceedings. 
But going ahead with criminal charges for bringing the judiciary into disrepute, or for obstructing the course of justice, would in fact impede a discussion that we need to have on a topic that has a significant bearing on the administration of justice. 
Why contempt for live proceedings?
On July 23, a Constitution Bench of the Supreme Court ruled that the truth, told in good faith, shall be a defence against contempt charges. It was the first definite ruling on the amended contempt law, and heralded a big victory for the press. But, leave aside the fact that there was no critical analysis of the judgement. All reports focused only on the rival parties - Arun Shourie and Subramanian Swamy - and how their relations might be getting strained. 
What are the usual arguments against the Supreme Court implementing a stillborn proposal which the UPA government had mooted in 2007, namely that live telecast of select proceedings should be permitted?  
The first is that the public won't understand, because the law is a hyper-specialised subject, meant only for experts or at least those who have some knowledge. Another is that the "unlettered" public, disappointed by the absence of the "spectacle" (scintillating, Bollywood-style court duels), will draw erroneous conclusions. 
As Adam Liptak, the New York Times’ Supreme Court correspondent and a strong advocate of cameras in court, says, not only does this impose a sort of "intellectual poll tax" on the people, but such a dim view of the public's ability also breeds distrust and resentment. 
Another apprehension is that the public might impute motives to judges and their decisions. Surely, even if they disagree with a verdict, the best way to avoid such conjecture would be to open up the process to the people so that their suspicions are dissipated. 
Naysayers are also wary of grandstanding by members of both the bar and the bench, fearing that the presence of cameras will ensure the "Observer Effect" when the very existence of watchers (cameras, in this case) makes people behave differently, giving rise to a reasonable likelihood of the judicial process being negatively affected. This, one must say, is too cynical by half. For, if there is so little faith in judges' and lawyers’ ability to restrain themselves from "playing to the cameras", then faith in the judicial system itself must be misplaced. 
That the Supreme Court isn't totally camera-shy is evident from its decision to allow the broadcast of the proceedings of the first Lok Adalat it held with great fanfare, on its premises on 2 May 2008. Can the highest judicial institution afford to be selective about openness?
Open justice
The concept of open justice, in which everyone sees and understands justice being done, is worth considering as a principle and a practice.  Open justice will be incomplete without the public's access to oral arguments in court in matters of high constitutional importance. 
Misgivings about open justice include fears of a ‘trial by media’ but less attention is paid to the quality of legal reportage, which, if truth be told, suffers from many infirmities. For one, barring very few honourable exceptions, most reporters tell us only what the court held, not how it arrived at the decision. 
While space and time constraints make it difficult for reporters to provide detailed, lucid stories which can help the public to understand the context, there is also a dire need for better-trained and specialised legal correspondents. 
This fact was acknowledged by the Law Commission of India during a consultation on media laws in September. The Commission agreed that that a transformation of the structure of rules governing the reporting of court proceedings and sub judice cases was necessary. Only waving the sword of sanctions serves no purpose; there ought to be standards in place which could enable and encourage better and accurate reportage. 
Forty eight years ago, in the Naresh Mirajkar case, five judges of the Supreme Court unanimously upheld the public's right to watch court proceedings because it was essential to the administration of justice. However, the court erred by holding that a judicial decision only affects the right of the parties involved, not the public at large. 
If the court corrects this anomaly in judicial reasoning and allows truly unfettered access to proceedings concerning significant public interest, it would only enhance the "majesty of the law" instead of diminishing it by clinging on to secrecy. 
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